Court says "no" to medical marijuana dispensaries

The Michigan Court of Appeals ruled on a medical marijuana case today.

user elioja
/ flickr http://michrad.io/1LXrdJM

Updated at 9:57 p.m.

We have this update from Rick Pluta -

The decision leaves the discretion to close a dispensary with local prosecutors.

Isabella County Prosecutor Larry Burdick, who brought the case to the Court of Appeals, says local police in his bailiwick will start tonight delivering copies of the decision and warning letters to the "four or five dispensaries in his bailiwick."

He says the letters warn the dispensaries they are out of compliance with the law if they accept payments for medical marijuana and, if so, they need to change their operations or shut down.

Ingham County Prosecutor Stuart Dunnings III says he's facing a more complicated situation. The city of Lansing has become a center for dispensaries. It has upwards of 40 -- some of them operate 24/7.

Dunnings says he warned city officials the dispensaries are illegal, but the city passed an ordinance allowing them. Dunnings says he intends to step carefully since the dispensary operators thought they were playing by the rules. Nevertheless, The Lansing City Pulse reports most of the 11 dispensaries on the Michigan Avenue strip directly east of the state Capitol responded to the ruling by closing their doors.

Update 2:37 p.m.

Here's a video of the oral arguments made in front of the Michigan Court of Appeals on June 7, 2011.

The Court of Appeals ruled today that the marijuana dispensary in question operated in violation of the law.

Komoron told Carmody that despite the ruling, dispensaries around the state will continue to operate under local implementation and interpretation of the Michigan Medical Marihuana Act - at least until the Michigan Supreme Court rules on the case.

Listen

Listening...

/

Update 12:48 p.m.

Sarah Alvarez, Changing Gears Public Insight Analyst and lawyer, read the ruling that was released by the Michigan Court of Appeals this morning. A three-judge panel wrote the opinion (Joel Hoekstra, Christopher Murray, and Cynthia Stephens).

The case involves Isabella County prosecutors office and the two owners of the Compassionate Apothocary, a dispensary in Isabella County operating with 345 members. Alvarez says the appeals court finds that no provision of the Michigan Medical Marihuana Act would permit for patient to patient sale of marijuana.

The dispensary is therefore found to be a public nuisance and must cease operations. (important to note this is not a criminal prosecution).

Alvarez has more analysis:

The language of the MMMA defining medical use of marijuana is as follows, "the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marijuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition.

It also says "A registered primary caregiver may receive compensation for costs associated with assisting a registered qualifying patient in the medical use of marihuana" THIS is the provision that the dispensaries are set up under, because the law did not address the question of distribution more directly.

The court is saying that since the law does not EXPRESSLY state that dispensaries are permitted or that patient to patient sales are permitted that they are in fact violating the Public Health Code. The court also says that patients are not only transferring marijuana, they're selling it and the part of the law that says folks can receive compensation doesn't protect them.

Michigan Radio's Steve Carmody is also following this story. He reports that the Michigan Court of Appeals ruled Medical Marihuana cannot be sold through dispensaries:

The decision does put the legal status of medical marihuana dispensaries in doubt. Michael Komorn is the president of the Michigan Medical Marihuana Association. He says the court’s ruling hurts patients:

“I believe the voters of Michigan intended medical marihuana patients to have safe, reliable access to cannabis. This decision by the Court of Appeals does not recognize this basic, but important fact.”

Komorn says dispensaries are important sources of medical marihuana for patients…who otherwise would have to wait months for their own plants to grow.

Carmody reports the case could be appealed to the Michigan Supreme Court.

These court decisions are being closely watched as the rulings will help clarify how marijuana dispensaries can operate under the state's medical marijuana law (Michigan Medical Marihuana Act).

From the Associated Press:

The court ruled Wednesday in a case from mid-Michigan's Isabella County where people with medical marijuana cards sold pot to each other. The three-judge panel says the 2008 law and the state's public health code do not allow such sales.

It is the first time the appeals court has ruled in a case involving pot dispensaries. The Michigan Supreme Court has agreed to hear appeals on other aspects of the medical marijuana law.

The Mount Pleasant dispensary is called Compassionate Apothecary. It allows people to sell marijuana to each other, with the owners taking as much as a 20 percent cut. In less than three months, the business earned $21,000 before expenses after opening in 2010.

The Detroit Free Press reports a lower court ruled that the practice of patient-to-patient sales was acceptable under state law.

A lower court had said that said the Compassionate Apothecary was operating within the law when its operators allowed patients or caregivers to buy marijuana that other members had stored in their lockers rented from the facility. The owners, according to court records, provided the mechanism for the sales and took a 20 % cut of the sale price.

The appeals court ruling states:

...defendants have no authority to actively engage in and carry out the selling of marihuana between CA (Compassionate Apothecary) members. Accordingly, we reverse the trial court’s order denying plaintiff’s request for a preliminary injunction and remand for entry of judgment in favor of plaintiff.

The Freep reports "the ruling supports the Isabella County Prosecutor’s effort to close the operation as a public nuisance that violates the state’s Public Health Code."

Changing Gears Public Insight Analyst and lawyer, Sarah Alvarez, is reading the ruling and will share her thoughts with us.

*Our earlier headline read "Court rules people cannot sell medical marijuana to each other in dispensaries." We changed it to reflect the broader scope of the ruling.

Related Content

State Attorney General Bill Schuette is backing proposed changes to Michigan’s voter-enacted medical marijuana law. He says it’s been “hijacked” by people trying to make money, rather than offering relief to people facing terminal disease or a painful chronic illness.

Schuette says the result of a poorly written ballot initiative is the proliferation of shops that make a business of selling marijuana to people with easy-to-acquire medical cards.

The state Treasury Department says medical marijuana cannot be taxed in Michigan without a change in the law. The medical marijuana law was enacted by voters in 2008. But the law is silent on the question of taxing medical marijuana dispensed by licensed clinics and caregivers.

James Campbell is an accountant who asked for the opinion. He says the state has not been taxing dispensaries and caregivers. But Campbell says he could not be sure that wouldn’t change.

Two years ago, Michigan voters overwhelmingly approved a state constitutional amendment allowing the use of marijuana for medical purposes.

Voters from liberal Ann Arbor to staunchly conservative Ottawa County supported this change.

Some, to be sure, saw this as opening the door to a complete legalization of marijuana. However, they appear to have been a minority. Most people seem to have felt that those who are legitimately suffering from disease such as glaucoma ought to be able to use the drug in cases where it could ease their pain.

But the devil is always in the details, and we probably should have foreseen that administering this law was going to be an unholy mess. Yesterday, the Detroit Free Press took a comprehensive look at how the medical marijuana law has been working.

To nobody’s surprise, their answer was: Not very well. The state is struggling with a huge backlog of applications to grow the stuff.

Prosecutors, meanwhile, have been going after people who may be falsely claiming to be growing and selling pot for medical use, and there are also rumors that certain physicians are happy to certify that most anybody qualifies to use marijuana for “medical” purposes.

On top of that, neither the constitutional amendment - or any other law - has made it clear where medical marijuana is supposed to come from. Part of the problem is that marijuana is a controlled substance whose use is illegal under federal law.

So, basically, the original source of any pot supply has got to be illegal, even if the state of Michigan approves someone to grow marijuana for medical reasons. There is also, so far as I can tell, absolutely nothing to ensure purity or quality control of the supply.

Basically, then, we’ve got a system of something approaching anarchy when it comes to medical marijuana.

There are still some open questions about how the state will implement its two year old Medical Marijuana law.

The state has not said how dispensaries of the drug should be regulated so some cities allow the dispensaries and others do not.

These differences have put a few cities in court. Advocates say the state is missing an opportunity by not regulating the dispensaries.

Karen O’Keefe is with the Marijuana Policy Project, a supporter of the original law.

"States that have regulated dispensing, a lot of them subject medical marijuana to sales tax. Some of them also have modest business taxes and there are fees. So in addition to helping patients have access and clearing up some of the confusion that localities are facing it would help the state financially."

Groups on both sides of the issue plan to continue to push the state to weigh in on the issue this year.

But a) it conflicts with federal law, and b) it does not provide details on how and where registered medical marijuana users can get their pot. Confusion reigns around these issues and court battles are heating up.

Some cities accept the state law and are regulating pot dispensaries through ordinances or zoning laws.

Others are refusing to accept the law and are passing ordinances that effectively ban medical marijuana.

Here we plan to keep a running tally of how cities across Michigan are reacting to the medical marijuana law. Let us know if you have more information that should be posted here!

A medical marijuana patient and attorney is filing suit against a west Michigan city set to ban portions of the state's new medical marijuana law.

The city of Wyoming is poised to adopt a ban on growing medical marijuana next month through zoning regulations. If it does, it would join about 30 other Michigan cities with similar rules.

Attorney and medical marijuana patient John Ter Beek spent about $3,000 to create his small grow room for 12 plants. It's in the basement of his modest two-story home in Wyoming. He intends to keep it.

The state's medical marijuana law is "inartfully drafted" according to Appellate Court Judge Peter O'Connell. O'Connell was quoted in a Detroit News article saying the law is so confusing that users "who proceed without due caution" could "lose both their property and their liberty."